I. Statement of the Case

This case is before the Authority on a
petition for review of a negotiability issue filed by the Union under section
7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the
Statute). The petition for review contains one proposal that would require the
Agency to be responsible for attaching emblems to uniforms worn by civilian
technician employees. For the reasons that follow, we find that the proposal is
within the duty to bargain.

II. Background

A. The technician act and its 1996 amendments

The Union represents approximately 300
civilian technicians employed by the Agency. National Guard technicians are
unique, dual-status employees who must, as a condition of their civilian
employment, become and remain members of the National Guard, maintaining the
particular military grade specified for their civilian positions. 32 U.S.C.
709(b),(d),(e) (the technician act); see 5 U.S.C. 2105(a)(1)(F);
The Association of Civilian Technicians, Pennsylvania State Council and
Adjutant General, Department of Military Affairs, Commonwealth of
Pennsylvania, 3 FLRA 50, 51 n.1 (1980).

In 1996, the technician act was amended to
include a requirement that technicians wear a military uniform while performing
their technician duties. Pub. L. 104-106, sec. 1038(a), 110 Stat. 432; Pub. L.
104-201, sec. 654, 110 Stat. 2583 (the 1996 amendments). [n1] This statutory change codified a long-standing
rule that technicians wear the military uniform while performing their duties.
See Division of Military and Naval Affairs, State of New York, Albany, New
York, 15 FLRA 288 (1984), aff'd sub nom.New York Council,
Association of Civilian Technicians v. FLRA, 757 F.2d 502 (2d Cir. 1985),
cert. denied 474 U.S. 846 (1985). Along with the statutory requirement
to wear a military uniform, the 1996 amendments provided that technician
officers are entitled to receive uniform allowances pursuant to 37 U.S.C.
§ 417 and that technician enlisted personnel are entitled to receive
uniforms or uniform allowances pursuant to 37 U.S.C. § 418. [n2] Through these amendments, uniform allowances
and uniforms previously supplied under sections 417 and 418 only for military
service are also supplied for technician duties.

The proposal at issue in this case was
submitted to the Agency during negotiation of the parties' collective
bargaining agreement and relates to the military uniforms that technicians are
required to wear while performing their technician duties.

B. Union's Proposal

The employer will provide uniforms in a ready to wear fashion. All
emblems, name tags, insignia etc. will be attached, and any cost will be borne
by the agency.

C. Positions of the Parties

1. Agency

The Agency contends that the proposal is
outside the duty to bargain for three reasons.

First, the Agency asserts that the proposal
is contrary to 37 U.S.C. §§ 417 and 418. According to the
Agency, the 1996 amendments mandate the reversal of previous Authority
precedent finding that proposals concerning uniform allowances for civilian
technicians are within the duty to bargain. In particular, the Agency asserts
that the previous decisions were premised on the fact that uniform allowances
for civilian technicians were authorized under 5 U.S.C. § 5901 and 10
U.S.C. § 1593 (sections 5901 and 1593), which govern uni- [ v55 p64 ] forms for all Defense Department
civilian employees. Statement of Position at 3 (citing Association of
Civilian Technicians, Arizona Army Chapter 61 and U.S. Department of Defense,
National Guard Bureau, Arizona National Guard, 48 FLRA 412 (1993)
(Arizona National Guard)). The Agency argues that, under the 1996
amendments, it may no longer provide uniform allowances under sections 5901 and
1593, and that this change renders negotiation over the proposal contrary to
sections 417 and 418, as amended.

Second, the Agency asserts that the 1996
amendments make the subject of uniforms for technicians a "military aspect
of technician employment." Statement of Position at 5 (citing National
Federation of Federal Employees, Local 1655 and Adjutant General of
Illinois, 20 FLRA 829 (1985)). Therefore, according to the Agency, the
proposal does not concern a condition of employment, as defined in section
7106(a)(14) of the Statute. The Agency claims that Congress' intent to make the
wearing of the uniform a military issue is established by: (1) the reference in
the 1996 amendments to "members [of the military]," rather than to
"employees"; (2) the fact that the 1996 amendments were codified in
title 37; and (3) the exclusion of "member[s] of the uniformed
services" from the definition of "employee" in section
7103(a)(2)(B)(ii) of the Statute.

Third, the Agency contends that the
amendments to sections 417 and 418 "deal comprehensively with" the
subject of uniforms for technicians. Statement of Position at 6
(citingNational Association of Government Employees, SEIU,
AFL-CIO and National Guard Bureau, Adjutant General, 26 FLRA 515, 525-26
(1987) (Adjutant General); Association of Civilian Technicians,
Wisconsin Chapter and Wisconsin Army National Guard, 26 FLRA 682 (1987)
(Wisconsin Army National Guard)). Therefore, in addition to the reason
set forth in the immediately preceding paragraph, the Agency contends that the
proposal does not concern a condition of employment, within the meaning of
section 7103(a)(14) of the Statute, for this reason as well.

2. Union

The Union argues that the proposal concerns
"nothing more than what is provided" under sections 417 and 418 to
members of the military. Union's Response at 1. According to the Union, sewing
services for members of the military are provided either directly by the Agency
or through a "chit" system in Agency laundry facilities. Id.

The Union states that it does not dispute the
Agency's assertions that recent amendments codify the requirement that
technicians are required to wear a uniform while performing their technician
duties, and that title 5 is no longer applicable to uniform allowances for
technicians. However, the Union asserts that it "does dispute management's
argument that Congress meant for Technicians to bear an expense not even
required by Basic Military Personnel." Id. at 2.

III. Meaning of the Proposal

Consistent with its wording and the Union's
statement of intent, the proposal would require the Agency to provide
"ready to wear" uniforms, with emblems attached. Where the Agency
does not attach the emblems through its sewing services, employees would be
issued "chits" to procure these services through contractors
currently employed at Agency laundry facilities.

IV. Analysis

A. The proposal is not inconsistent with the specific terms of Sections
417 and 418

The parties agree that sections 417 [n3] and 418, as amended, eliminate the prior
authority to pay a uniform allowance to technicians under sections 5901 and
1593. [n4] However, there is nothing in the
terms of sections 417 or 418 with which the proposal is inconsistent.
Specifically, nothing in section 417 or 418 would prohibit the Agency from
agreeing to supply uniforms "ready to wear," or to provide sewing
services through existing base facilities. In fact, sections 417 and 418
are silent as to both the condition of the uniforms to be supplied and any
bargaining obligations regarding that matter.

The Agency contends, nevertheless, that the
proposal conflicts with sections 417 and 418 because: (1) the Authority has
held that the "only basis" for bargain- [
v55 p65 ] ing on uniforms and allowances is sections 5901 and 1593;
and (2) sections 5901 and 1593 no longer apply by virtue of the 1996
amendments. We accept, for this analysis, the parties' agreement that sections
5901 and 1593 do not apply in determining whether this proposal is within the
duty to bargain. Seesupra n.4. Further, we agree with the
Agency that the 1996 amendments render inapplicable previous Authority
decisions holding that sections 417 and 418 --prior to their amendment -- did
not apply to technicians. SeeArizona National Guard, 48 FLRA
at 418 (citing National Federation of Federal Employees, Local 1655 and
U.S. Department of Defense, National Guard Bureau, Illinois National Guard,
Springfield, Illinois, 43 FLRA 1257, 1261-62 (1992) (Illinois
National Guard) and 32 U.S.C. § 709(c)); U.S. Department of
Defense, National Guard Bureau, Alexandria, Virginia and Oregon Military
Department, Oregon National Guard, Salem Oregon, 47 FLRA 1213, 1219
(1993). The Agency has not explained, however, how these points, or any others,
make the proposal inconsistent with sections 417 and 418, as amended.

The mere fact that the authority to provide
uniforms or pay allowances is not based in sections 5901 and 1593, but in
sections 417 and 418, does not render negotiation over this subject
inconsistent with sections 417 and 418. The newly amended language of sections
417 and 418 does not reveal any inconsistency between the terms or the
structure of these sections and collective bargaining over this proposal. There
is no indication that Congress specifically intended that these amendments
would affect collective bargaining over this matter, or that it intended that
this issue should be revisited by the Authority.

Put simply, the fact that uniforms and
uniform allowances are, under the 1996 amendments, authorized under sections
417 and 418 does not, in and of itself, create an inconsistency between the
proposal and the terms of amended sections 417 and 418. We thus reject the
Agency's argument to the contrary.

B. The proposal does not relate to a military aspect of technician
employment

The Authority has held that, although
technicians may negotiate concerning their "employment in a civilian
capacity," Congress did not intend that they be permitted to negotiate
over "the military aspects of civilian technician employment"
Association of Civilian Technicians, Montana Air Chapter and Department of
the Air Force, Montana Air National Guard, Headquarters, 120th Fighter
Interceptor Group, (ADTAC), 20 FLRA 717, 739 (1985) (Montana Air
National Guard) (finding reenlistment not subject to negotiation). In
ratifying this doctrine, which applies only to this unique type of employee,
the U.S. Court of Appeals for the District of Columbia Circuit explained:

National Guard technicians are both civilian employees and
enlistees in National Guard units. The two worlds they simultaneously inhabit
are understandably governed by very different rules of employee-employer
relations. As members of the Guard, technicians are subject to military
authority; as civilian employees, they are covered by the . . . [Statute],
which permits them to bargain over conditions of their employment. . . .

The rule that collective bargaining for
technicians turns on whether the matter at issue is a military or civilian
aspect of their employment requires that the Authority draw a line between the
two types of employment conditions, recognizing that "the military side of
technicians' employment takes precedence" Id. at 1351. Thus, for
example, the Authority has found that a proposal that relates to the military
grade of technicians is a military matter outside the duty to bargain, while a
proposal that position descriptions list the required "Military
Occupational Specialty" is a civilian matter within the duty to bargain.
SeeAssociation of Civilian Technicians, Pennsylvania State
Council and Adjutant General of Pennsylvania, 29 FLRA 1292, 1295, 1300
(1987); see alsoMontana Air National Guard, 20 FLRA at 722
(finding RIF reinstatement proposal that disregarded military compatibility
requirements outside duty to bargain).

The Authority has applied this rule to issues
relating to military uniforms, consistently holding that proposals relating to
the wearing of the uniform during the time when technician duties are performed
relates to civilian, rather than military, aspects of technician employment.
SeeArizona National Guard, 48 FLRA at 417; U.S. Department
of Defense, National Guard Bureau, Illinois National Guard, Springfield,
Illinois, 43 FLRA 1257, 1261 (1992); Wisconsin Army National
Guard, 26 FLRA at 685. In so holding, the Authority reasoned that the
uniforms in question were "worn by technicians as civilian employees of
the National Guard" and that the decisive consideration was not "the
military nature of the uniform," but "the status of the personnel who
wear the uniform." Arizona National Guard, 48 FLRA at 417.

[ v55 p66 ]
According to the Agency, this result is no longer correct, because
the 1996 amendments make the supplying of uniforms a military matter. We are
not persuaded, however, that the terms of the 1996 amendments or their
legislative history support the Agency's position. To begin with, the wording
of sections 417 and 418 does not support viewing the supplying of uniforms for
technician employment as a military, rather than civilian matter. Indeed,
sections 417 and 418 specifically refer to the provision of uniforms to an
individual "while employed as a National Guard technician."
Section 417(d), 418(b) (emphasis added). Thus, the Amendments do not alter the
fact that the uniforms are worn during the time when the individual is
performing technician duties, which has previously been recognized as relating
to civilian aspects of their employment. SeeArizona National
Guard, 48 FLRA at 417.

Further, as we noted in Association of
Civilian Technicians, Mile High Chapter and U.S. Department of Defense,
Colorado Air National Guard, 140th Fighter Wing, 53 FLRA 1408, 1414-15
(1998) (Colorado Air National Guard), the legislative history of the
1996 amendments is "spare." Congress did not reveal any intent to
make such matters as sewing services military matters. In particular, the only
reference to the uniform provision and allowance sections of the 1996
amendments is in the Senate Report accompanying the appropriations bill, which
states that the amendments would "place technician officers on the same
footing as Active Guard and Reserve officers for purposes of qualifying for a
uniform allowance." S. Rep. 104-112, section 333 (July 12, 1995). A
requirement that qualifications for uniform allowances be the same for active
duty officers and technicians does not imply that technicians cannot negotiate
concerning other aspects of these sections.

The Agency points to a reference in
subsection (a) of the 1996 amendments to "members'" grade, as
evidence that the wearing of the uniform is a military matter. Statement of
Position at 4. However, the Agency ignores the full context of this reference,
which is that a technician will "wear the uniform appropriate for the
member's grade and component of the armed forces while performing duties as
a technician." 1996 amendments, section 1937(a); amending 32
U.S.C. 709(b) (emphasis supplied). The full sentence thus refers to technician
duties, which relates to the civilian aspects of their employment. [n5]

Moreover, the foregoing reference to
"members" is not contained in the subsections of the 1996 amendments
that address uniforms and uniform allowances. Rather, the reference appears in
subsection (a), the requirement codified in 32 U.S.C. 709(b)(3) that
technicians wear the military uniform. The Authority recently addressed this
subsection of the 1996 amendments. SeeColorado Air National
Guard, 53 FLRA at 1412. In that case, the Authority concluded that the
newly added requirement in section 709(b)(3), that technicians "wear the
uniform appropriate for the [member's] grade . . . while performing duties as a
technician[,]" was not subject to negotiation because section 709(b) did
not afford the Secretary the discretion to waive this requirement, as required
by the proposal at issue. The Authority reached this conclusion by construing
the requirement to wear a uniform consistently with the requirements, in
sections 709(b)(1) and 709(b)(2), that technicians maintain military membership
in the National Guard and hold compatible military and civilian grade levels,
respectively. Id. at 1415; Montana Air National Guard, 20
FLRA at 739.

Unlike the requirement that technicians wear
the uniform, which appears in section 709(b), the supplying of uniforms and the
payment of allowances are addressed in sections 417 and 418. Nothing in the
language of these sections indicates Congress' intent to limit the discretion
of the Secretary to negotiate over the terms under which uniforms or allowances
would be supplied.

The Agency also states that "by placing
the provisions on providing uniforms . . . under title 37 [which relates to
allowances of the uniformed services]. . . Congress was clearly making the
issue one of the military membership of . . ." technicians. However, the
Agency provides no support for so concluding, and it is not self-evident, that
the title of the United States Code in which a provision is placed determines,
by itself, whether a matter concerns a condition of employment. This is
especially true when the subject matter of the statutory provision concerns
employment as a technician, which is inherently civilian.

In this regard, the Agency notes that members
of the "uniformed services" are excluded from the definition of
"employee" -- and as a result from coverage under the Statute -- by
section 7103(a)(2)(B)(ii). However, the 1996 amendments did not change the fact
that technicians are civilian employees under 5 U.S.C. § [ v55 p67 ] 2105(a)(1)(F), and are thereby
entitled to bargain over their conditions of civilian employment under the
Statute. This dichotomy, between the exclusion of military members from the
Statute and the inclusion of National Guard technicians in their civilian
status, does create a unique situation. Among other things, this dichotomy
necessitates the line, described above, that the Authority has drawn between
civilian conditions of employment, which are within the duty to bargain, and
military aspects of technician service, which are outside the duty to bargain.
Where, as here, the statutory terms indicate that the matter is one relating to
employment as a technician, and the matter otherwise qualifies as a condition
of employment under the definition set forth in section 7103(a)(14) of the
Statute, it does not lose its status as a condition of employment simply
because the terms governing the matter are included in a provision that also
governs military matters.

C. The comprehensiveness of the uniform allowance provisions does not
dictate that this subject is specifically provided for by federal statute

The Agency also asserts that the amendments
to section 417 and 418 were intended to "deal comprehensively" with
the issue of uniforms and uniform allowances in a manner that makes bargaining
inappropriate. The Agency relies on two prior cases that found proposals
relating to uniform allowances to be outside the duty to bargain on this
ground. Adjutant General, 26 FLRA at 525-26; Wisconsin Army
National Guard, 26 FLRA at 683-84.

The Authority has recently clarified,
however, that the comprehensiveness of a statutory scheme is not, in itself, a
sufficient basis to find a matter outside the duty to bargain because the
matter is "specifically provided for by Federal statute" under
section 7103(a)(14)(C). SeeInternational Association of
Machinists and Aerospace Workers, Franklin Lodge No. 2135 and U.S. Department
of the Treasury, Bureau of Engraving and Printing, 50 FLRA 677, 685
(1995), aff'd mem. sub nom. Bureau of Engraving and Printing v. FLRA,
88 F.3d 1279 (D.C. Cir. 1996) (BEP). The appropriate inquiry, as set
forth in BEP, is whether the statute at issue provides the Agency the
discretion to agree to the proposal. Id. at 681-85.

Here, the Union states, and the Agency does
not dispute, that the proposal for the attachment of emblems onto uniforms
seeks the same services as are provided to enlisted personnel. Further, the
Agency does not claim that it does not have the discretion to provide these
services to technicians under sections 417 and 418. There is no basis,
therefore, to find that the matter is specifically provided for by Federal
statute and not a condition of employment.

In addition, with respect to the prior case
law cited by the Agency, Adjutant General, 26 FLRA at 525, and
Wisconsin Army National Guard, 26 FLRA at 682, we read those cases as
construing the proposals at issue to require expenditures in addition to, and
therefore inconsistent with, the expenditures for uniforms provided in section
5901. See alsoAmerican Federation of Government Employees,
AFL-CIO, Local 1931 and Department of the Navy, Naval Weapons Station, Concord,
California, 32 FLRA 1023, 1061-62 (1988) (distinguishing Adjutant
General). As the Authority has explained, proposals relating to technician
uniform allowances that are otherwise within the duty to bargain are
inconsistent with law if they require an expenditure greater than the maximum
amount permitted by law. Arizona National Guard, 48 FLRA at 419.
To the extent that the cases relied on by the Respondent suggest that the
comprehensive nature of section 5901, by itself, forecloses any bargaining on
the subject of uniform allowances, they are superseded by, and inconsistent
with, Arizona National Guard and BEP, and will not be
followed.

For the reasons stated, we find that the
proposal that is the subject of this negotiability appeal is within the duty to
bargain under the Statute.

V. Order

The Agency shall, upon request, or as
otherwise agreed to by the parties, negotiate over the proposal.

APPENDIX

Section 1038 provides in pertinent part:

Wearing of Uniform by National Guard Technicians.

(a) Requirement.--Section 709(b) of title 32,
United States Code, is amended to read as follows:

"(b) Except as prescribed by the
Secretary concerned, a technician employed under subsection (a) shall, while so
employed --

"(1) be a member of the National Guard;

"(2) hold the military grade specified by the Secretary
concerned for that position; and

"(3) wear the uniform appropriate for the member's grade and
component of the armed forces while performing duties as a technician.".

[ v55 p68 ]
(b) Uniform Allowances for Officers.--Section 417 of title 37,
United States Code, is amended by adding at the end the following:

"(d)(1) For purposes of sections 415 and
416 of this title, a period for which an officer of an armed force, while
employed as a National Guard technician, is required to wear a uniform under
section 709(b) of title 32 shall be treated as a period of active duty (other
than for training).

"(2) A uniform allowance may not be
paid, and uniforms may not be furnished, to an officer under section 1593 of
title 10 or section 5901 of title 5 for a period of employment referred to in
paragraph (1) for which an officer is paid a uniform allowance under section
415 or 416 of this title."

(c) Clothing or Allowances for Enlisted
Members.--Section 418 of title 37, United States Code, is amended--

(1) by inserting "(a)" before "The President";
and
(2) by adding at the end the following:

"(b) In determining the quantity and
kind of clothing or allowances to be furnished pursuant to regulations
prescribed under this section to persons employed as National Guard technicians
under section 709 of title 32, the President shall take into account the
requirement under subsection (b) of such section for such persons to wear a
uniform.

"(c) A uniform allowance may not be
paid, and uniforms may not be furnished, under section 1593 of title 10 or
section 5901 of title 5 to a person referred to in subsection (b) for a period
of employment referred to in that subsection for which a uniform allowance is
paid under section 415 or 416 of this title.".

37 U.S.C. § 417 states in pertinent part:

(c) For the purposes of sections 415(a)-(c) and 416 of this title
and subsections (a) and (b), an officer may count only that duty for which he
is required to wear a uniform.

(d)(1) For purposes of sections 415 and 416 of this title, a
period for which an officer of an armed force, while employed as a National
Guard technician, is required to wear a uniform . . . shall be treated as a
period of active duty (other than for training).

(2) A uniform allowance may not be paid, and uniforms may not be
furnished, to an officer under section 1593 of title 10 or section 5901 of
title 5 for a period of employment referred to in paragraph (1) for which an
officer is paid a uniform allowance under section 415 or 416 of this
title. [n6]

37 U.S.C. § 418 provides in pertinent part:

(a) The President may prescribe the quantity and kind of clothing
to be furnished annually to an enlisted member of the armed forces or the
National Guard, and may prescribe the amount of a cash allowance to be paid to
such a member if clothing is not so furnished to him.

(b) In determining the quantity and kind of clothing or allowances
to be furnished pursuant to regulations prescribed under this section to
persons employed as National Guard technicians under section 709 of title 32,
the President shall take into account the requirement under subsection (b) of
such section for such persons to wear a uniform.

(c) A uniform allowance may not be paid, and uniforms may not be
furnished, under section 1593 of title 10 or section 5901 of title 5 to a
person referred to in subsection (b) for a peri